10th Circuit: District Must Provide On-Site Interpretive Services

"Subject:10th Circuit: District Must Provide On-Site Interpretive Services
To the Extent That Costs Don't Exceed Costs of Supplying in Public School
Setting"

Becoming the fifth federal court of appeals to rule on the issue of private
school services, the 10th Circuit ordered the provision of one-on-one interpretive
services to a deaf student on the site of his private school, but placed
one qualification on the provision of those services in the area of cost.
According to that court, the district must pay for the interpretive
services in an amount up to, but not exceeding, the average cost it would
incur to provide those same services to similarly situated students in
the public schools. For the full text of this decision, see "Fowler by
Fowler v. Unified Sch. Dist. No. 259," 25 IDELR __ (10th Cir. 1996), in
the IDELR Daily Database; full text available on February 27, 1997.

Background. . .The parents of 10-year-old gifted student who was profoundly
deaf sought the district's provision of one-on-one interpretive services
on the premises of his private, nonsectarian school. The district had a
cluster site for providing services to all elementary school children who
were deaf. At a first-level due process hearing, the parents prevailed
in obtaining those services. Then, during a second level due process hearing,
that decision was reversed and the services were denied. Thereafter, the
parents appealed to district court to seek that relief. The district court
held that the IDEA and its regulations required the provision of the one-on-one
interpretive services, without regard to the cost of providing those services.
Parents were also awarded reimbursement for the cost of interpretive services
they had supplied at their own expense, and attorneys' fees. The court
subsequently denied a request for a stay of the order to provide the interpreter
services, but did grant a stay of the money judgment pending the circuit
court appeal.

HELD: the parents substantially prevailed.

At the outset, the circuit court observed that while local educational
agencies have "considerable discretion" in providing services to parentally
placed private school students, but that discretion is not "unfettered"
and has "parameters". The court went on to find that cost was a relevant
factor in this determination. Applying that rationale, the court said that
the district was obliged to pay for the requested service in an amount
up to, but not exceeding, the average cost the district expended in providing the same service to similarly disabled students in the public school setting, citing to 34 CFR 76.655(a) of the EDGAR regulations
as authority for choosing the "average amount" as its "guiding principle".
Regarding the calculation of the average amount of costs, the court noted
that it was not an "exercise in pure mathematics" and that the district
had "very broad discretion to calculate the average, using any rational
basis" and that it would give "substantial deference" to
its calculation. The court refused to find that the state statute provided
any greater relief to the student or parents in this area. The circuit
court affirmed the district court's award of attorneys' fees and further
found that they were entitled to at least partial, and perhaps total, reimbursement
for the interpreter services they had obtained at their own expense. In
accordance with its findings, the circuit court reversed the district court
and remanded the matter to the extent that it ordered the
disputed services to be provided without regard to cost.

[Editor's Note: Once again, another court hearing the issue of private
school services adds a slightly different twist. The Fowler approach aligns
itself with the cases which view the rights of private school students
with disabilities as closer to entitlements, rather than a privilege which
the schools have discretion to provide. In Russman, the Second
Circuit strongly suggested that cost may be a factor in limiting services
for this group, at least in the context of where the services were provided---on-site at the private school versus a public school location. In Fowler, the 10th
Circuit provides more detail about the parameters of cost as it affects
this determination, very clearly stating that the services must be provided
to the extent that they do not exceed expenditures which would be made
under similar situations in the public setting. Note the significant leeway
Fowler afforded to the local educational agencies in establishing the average
costs of services. At this time, the special education is still waiting
to hear whether the Supreme Court will hear the Russman and Anderson cases,
and review seems likely given the conflict which pervades the law on private
school services at this time.]